Lock et al. v. Peters First Nation

Lock et al. v. Peters First Nation
Collection
Canadian Human Rights Tribunal
Date
2023-11-28
Neutral citation
2023 CHRT 55
File number(s)
T2697/7321; T2698/7421; T2699/7521; T2716/9221; T2717/9321
Decision-maker(s)
Fagan, Catherine
Decision type
Decision
Grounds
Disability
Family Status
Summary:
Gordon Lock, Deborah Senger, Harold Lock, Carol Raymond and Neil Peters want to be members of the Peters First Nation. They are all connected to the Peters First Nation and regained Indian Act status around 1987 after Bill C-31 was introduced. This case is about how the Peters First Nation addressed Gordon, Deborah, Harold, Carol and Neil’s desire to become members.
Processing membership requests is a service, so the Canadian Human Rights Act requires it to be done in a non-discriminatory way. Carol and Neil submitted membership applications. The way the Peters First Nation processed those applications was a service because it added barriers not found in its Membership Code. Similarly, the complex application process Peters First Nation created was a service. The Peters First Nation told Gordon, Deborah, Carol and Neil not to apply. This advice is also a service. However, the Tribunal didn’t decide whether removing Harold and Deborah from the Membership List in 1987 was discrimination. Those events were too old. Therefore, Harold’s case was not successful.
The Peters First Nation said that Carol and Neil couldn’t be members because they were too old. Age was a factor in processing their applications.
Family status was a factor in how the Peters First Nation processed Gordon’s, Deborah’s, Carol’s and Neil’s applications. For Carol, the Peters First Nation said that it considered her parents’ divorce when processing her application. For Neil, the Peters First Nation considered his parents’ enfranchisement when processing his application. For Deborah and Gordon, the Peters First Nation created barriers to their membership because their father did not have Indian Act status. These reasons are all discrimination based on family status.
The Peters First Nation didn’t show that its actions were justified. The Peters First Nation said it tried to protect its cultural values and community. The Tribunal didn’t think the Peters First Nation acted in good faith in processing these membership requests. The Peters First Nation failed to show that excluding Gordon, Deborah, Carol and Neil protected the community and its cultural values.
The Tribunal ordered the Peters First Nation to stop discriminating in processing memberships. It also had to reconsider the requests for membership in this case. Gordon, Deborah, Carol and Neil each got $12,500 for pain and suffering. They also each got $20,000 because the Peters First Nation wilfully discriminated against them when addressing their membership requests.
The evidence showed that Gordon, Deborah, Carol and Neil probably would have been members if the Peters First Nation didn’t discriminate in processing their applications. Therefore, the Tribunal ordered the Peters First Nation to pay Gordon, Deborah, Carol and Neil what other members got during this period. That results in a payment of $242,000 each.
The Tribunal didn’t agree to keep its file open to make sure the Peters First Nation followed the Tribunal’s orders. The Federal Court can ensure the Tribunal’s orders are followed.
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2023 CHRT
55
Date:
November 28, 2023
File Nos.:
T2697/7321; T2698/7421; T2699/7521; T2716/9221; T2717/9321
Between:
Gordon Lock, Deborah Senger, Harold Lock, Carol Raymond and Neil Peters
Complainants
- and -
Canadian Human Rights Commission
Commission
- and -
Peters First Nation
Respondent
Decision
Member:
Catherine Fagan
Table of Contents
I. Overview 1
II. Summary of Decision 3
III. Issues 5
IV. Peters First Nation Membership Code 6
V. Circumstances of Each Complainant 9
A. Gordon Lock, Deborah Senger and Harold Lock 9
(i) Gordon Lock 10
(ii) Deborah Senger 11
(iii) Harold Lock 13
B. Carol Raymond 14
C. Neil Peters 17
VI. Analysis 19
A. Removal of membership in 1987 outside the scope of the complaints 19
B. Has the Respondent established that the age requirement for membership applications is a customary law or legal tradition of the Peters First Nation as per section 1.2 of the Act to Amend the Canadian Human Rights Act? 21
C. Do Peters First Nation’s actions in relation to membership requests constitute a service? 27
D. Were the Complainants adversely impacted and subject to a disadvantage in the processing of their membership requests? 31
(i) Gordon Lock 31
(ii) Deborah Senger 34
(iii) Carol Raymond 34
(iv) Neil Peters 35
(v) Harold Lock 36
E. Were disability, race, rational or ethnic origin, age, marital status or family status factors in the decisions to deny membership and related benefits? 37
(i) Age 37
(ii) Family Status 37
(iii) Disability 40
(iv) Race, National or Ethnic Origin and Marital Status 40
F. Have the Complainants established that they were prima facie discriminated against by Peters First Nation in the provision of membership-related services? 41
G. Has Peters First Nation established a bona fide justification for its discriminatory conduct? 41
(i) Is the specific objective (community cohesion and maintaining cultural values) rationally connected to a general function or objective of the Council? 42
(ii) Were the standards used to process membership requests adopted in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal? 43
(iii) Are the standards used to process membership requests necessary to accomplish its purpose or goal, and can the Complainants not be accommodated without undue hardship? 47
H. Remedies under section 53 of the CHRA 48
(i) Should Peters First Nation be ordered to cease discriminating against each of the Complainants? 50
(ii) Should Peters First Nation be ordered to reprocess each of the Complainants’ membership applications? 50
(iii) Should Peters First Nation be ordered to cease its discriminatory policies and criteria related to age and family status in all current and future membership applications? 52
(iv) Should Peters First Nation be ordered to work with the Commission to review and revise its policies respecting membership? 54
(v) Should Peters First Nation be ordered to make available membership opportunities and privileges to the Complainants that have been denied, including compensation for the Trans Mountain Pipeline and the Seabird Island Band land settlement? 55
(vi) Should each of the Complainants be entitled to compensation for pain and suffering? 60
(vii) Should each of the Complainants be entitled to compensation for willful and reckless discrimination? 63
(viii) Should this Tribunal retain its jurisdiction until the parties confirm that the remedies have been implemented? 66
VII. Orders 68
Schedule A: 70
I. Overview [1] The Complainants in this case, Gordon Lock, Deborah Senger, Harold Lock, Carol Raymond and Neil Peters, allege that Peters First Nation, the Respondent, discriminated against them when processing their membership requests on the grounds of race, national or ethnic origin, marital status and family status contrary to the Canadian Human Rights Act, RSC 1985, c H-6 (CHRA).
[2] Common to all these complaints is the allegation of denial of membership, access to membership or the removal of membership in the Peters First Nation on discriminatory grounds. Due to the discriminatory provisions of the Indian Act, R.S.C. 1985 c.I-5 (the “Indian Act”) prior to 1985, all the Complainants previously lost their Indian status or right to status and, with it, their rights to membership in Peters First Nation, either because their parents were enfranchised, their mother married a non-Indian, or they themselves married a non-Indian. They all gained or regained their Indian status and related membership rights as a result of An Act to Amend the Indian Act, SC 1985, c 27 (Bill C-31). Peters First Nation has refused to recognize the Complainants as members. There is nothing in the Peters First Nation Membership Code (the “Membership Code”) that would appear to deny the Complainants entitlement to membership. Peters First Nation, however, has offered a wide range of reasons as to why the Complainants are not and cannot be members. Accordingly, these complaints are analysed through the lens of Peters First Nation’s processing of the Complainants’ membership applications.
[3] Prior to 1985, the Indian Act institutionalized sex-based discrimination by only recognizing that status could be passed paternally. Women who married non-Indian men would lose their status and so would their children. The Indian Act at the time also included various enfranchisement provisions that allowed status Indians to cease being Indians in exchange for various incentives. These provisions were part of the long-held strategy of the federal government to reduce the number of status Indians in the hopes that, overtime, Canada would be rid of its “Indian problem”.
[4] These provisions were widely regarded as discriminatory, and, after the enactment of section 15 of the Canadian Charter of Rights and Freedoms, Bill C-31 was introduced and passed to amend the Indian Act to (at least partially) remedy the discriminatory impacts of these provisions.
[5] Bill C-31 eliminated the enfranchisement provisions and allowed Indians who had lost their status due to enfranchisement, as well as women and their children who had lost their status because of marriage to a non-Indian, to be reinstated as status Indians.
[6] In Andrews et al. v. Indian and Northern Affairs Canada, 2013 CHRT 21 at paragraphs 1 to 6, this Tribunal provides an overview of the historical context of the enfranchisement provisions as well as the harmful and traumatizing impacts they had on those affected as well as their families and communities.
[7] Peters First Nation is a band pursuant to the Indian Act, and its members identify as Sto:lo. It has three reserves all located in the vicinity of Hope, British Columbia. Peters First Nation currently has approximately 73 listed members, somewhere between 35 and 43 of whom live on reserve. Indigenous Services Canada recognizes approximately 175 status Indians affiliated with Peters First Nation. Being recognized by Canada as an affiliate with Peters First Nation does not equate to recognized membership because, as explained below, membership is controlled directly by Peters First Nation.
[8] This case is one of a series of legal fights by individuals claiming that they have been illegally denied membership in Peters First Nation. To date, it has resulted in at least three separate judicial reviews, two appeals to the Federal Court of Appeal and one application for leave to appeal to the Supreme Court of Canada (Peters v. Peters First Nation Band, 2018 FC 544 (CanLII); Peters First Nation v. Peters, 2019 FCA 197; Engstrom v. Peters First Nation, 2020 FC 286; Peters First Nation v. Engstrom, 2021 FCA 243; Peters v. Peters First Nation, 2023 FC 399; Peters v. Peters First Nation, August 25, 2023 (re costs)).
[9] Like the present complaints, these cases concern individuals who were denied membership on the basis of age and other discretionary criteria not mentioned in the Membership Code. Peters First Nation has repeatedly lost these applications and appeals, and the Federal Court has repeatedly found that the Council has acted in bad faith in processing membership requests. There is also another complaint before this Tribunal against Peters First Nation that also concerns allegations of discrimination in the processing of membership applications. That complaint is not yet at the hearing phase.
[10] Given the frequency of certain family names within Peters First Nation, I will respectfully use first names for the remainder of this decision to avoid confusion.
II. Summary of Decision [11] The Tribunal finds the complaints of Gordon, Deborah, Neil and Carol are substantiated.
[12] The Complainants are not directly challenging the Membership Code. Instead, they are challenging the discretionary and discriminatory way membership requests are being processed, which is a service within section 5 of the CHRA.
[13] Carol and Neil submitted multiple membership applications. In processing these requests, Peters First Nation added in criteria, requirements, complexities and barriers not found in its Membership Code. Neither Gordon nor Deborah submitted paper membership applications. However, Peters First Nation told them not to apply and required them to complete an unnecessarily complex application process, both of which were done in the provision of a service.
[14] The Tribunal does not decide whether removing Harold and Deborah from the membership list in 1987 was discriminatory, as the events were too old to fall within the scope of the complaints. Given the absence of other potentially adverse treatment for Harold within the scope of his complaint, Harold’s case was not successful.
[15] Peters First Nation admitted that it considered Carol’s and Neil’s age when processing and denying their membership applications. Age was also a reason Deborah and Gordon were told not to apply by Peters First Nation.
[16] Family status was a factor in how Peters First Nation processed Gordon’s, Deborah’s, Carol’s and Neil’s applications. For Carol, her parents’ divorce was a factor. For Neil, his parents’ enfranchisement was a factor. For Deborah and Gordon, their father’s lack of Indian status was a factor. These reasons all constitute discrimination based on family status.
[17] Peters First Nation did not provide sufficient evidence that it has a customary law or legal tradition to restrict membership applications to those 17 years of age or younger within the meaning of section 1.2 of the Act to Amend the Canadian Human Rights Act, SC 2008, c 30. Section 1.2 is an interpretive provision that requires the Tribunal to give due regard to a First Nation’s legal traditions and customary laws when interpreting and applying the provisions of the CHRA.
[18] Peters First Nation did not demonstrate a bona fide justification for its discriminatory conduct. Peters First Nation argued that its discriminatory conduct was tied to protecting its cultural values and community cohesiveness. However, its conduct was not in good faith, and it failed to show that excluding the Complainants from the membership list protected the community and its cultural values.
[19] The Tribunal orders Peters First Nation to stop discriminating in processing membership requests for the Complainants and all other present and future applicants. It also orders that the Complainants’ membership requests be reconsidered within 30 days. Gordon, Deborah, Carol and Neil are each awarded $12,500 for the pain and suffering they experienced as a result of the discrimination and $20,000 as compensation for Peters First Nation’s willful and reckless discrimination, which was so egregious that the highest amount permitted under the CHRA is justified.
[20] On a balance of probabilities, the evidence shows that the Complainants would have been members but for the discrimination. Therefore, Peters First Nation is ordered to pay Gordon, Deborah, Carol and Neil certain amounts that other members received during this period.
III. Issues 1. Have the Complainants established a prima facie case that Peters First Nation discriminated against them in the provision of membership-related services contrary to section 5 of the CHRA? This question requires answering the following questions:
a. Do Peters First Nation’s actions in relation to membership requests constitute a service?
b. Have the Complainants been treated adversely in the processing of membership requests or been denied the processing of their membership requests?
c. If yes, have the Complainants demonstrated on a balance of probabilities that their age, race, national or ethnic origin, marital status or family status were a factor in the processing of their membership requests?
2. If the prima facie case is established, has Peters First Nation proven a bona fide justification for its conduct pursuant to section 15(1) or section 15(2) of the CHRA? More specifically, has Peters First Nation demonstrated that:
a. the specific objective (community cohesion and maintaining cultural values) is rationally connected to a general objective of the Council;
b. Peters First Nation adopted the discretionary standards for the processing of membership requests in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal; and
c. the standards are reasonably necessary to accomplish its purpose or goal, in the sense that Peters First Nation cannot accommodate persons with the characteristics of the Complainants without incurring undue hardship.
3. Related to this analysis is whether the age requirement imposed on the membership applications of the Complainants is a customary law or legal tradition of Peters First Nation as per section 1.2 of the Act to Amend the Canadian Human Rights Act. If so, how does this determination impact the analysis of the above issues?
4. If this Tribunal makes a finding of discrimination, what remedies should be ordered under section 53 of the CHRA? The determination of remedies requires answering the following questions:
a. Should Peters First Nation be ordered to cease its discriminatory conduct in its processing of membership applications?
b. Should Peters First Nation be ordered to cease discriminating against each of the Complainants?
c. Should Peters First Nation be ordered to reprocess each of the Complainants’ membership applications?
d. Should Peters First Nation be ordered to make available membership opportunities and privileges to the Complainants that have been denied, including compensation for the Trans Mountain Pipeline and the Seabird Island Band land settlement disbursements?
e. Should each of the Complainants be entitled to compensation for pain and suffering?
f. Should each of the Complainants be entitled to compensation for the willful and reckless discrimination of Peters First Nation?
IV. Peters First Nation Membership Code [21] Before addressing the core issues in the case, it is useful to provide an overview of the current Membership Code and the context around its implementation.
[22] In 1985, Bill C-31 added a new section 10 to the Indian Act. The new section 10 allowed First Nations to control their membership lists for the first time since the enactment of the Indian Act, subject to certain requirements set out in section 10. Given the relevance of this section to these proceedings, I have included sections 10(1) to (5) below:
10 (1) A band may assume control of its own membership if it establishes membership rules for itself in writing in accordance with this section and if, after the band has given appropriate notice of its intention to assume control of its own membership, a majority of the electors of the band gives its consent to the band’s control of its own membership.
(2) A band may, pursuant to the consent of a majority of the electors of the band,
(a) after it has given appropriate notice of its intention to do so, establish membership rules for itself; and
(b) provide for a mechanism for reviewing decisions on membership.
(3) Where the council of a band makes a by-law under paragraph 81(1)(p.4) bringing this subsection into effect in respect of the band, the consents required under subsections (1) and (2) shall be given by a majority of the members of the band who are of the full age of eighteen years.
(4) Membership rules established by a band under this section may not deprive any person who had the right to have his name entered in the Band List for that band, immediately prior to the time the rules were established, of the right to have his name so entered by reason only of a situation that existed or an action that was taken before the rules came into force.
(5) For greater certainty, subsection (4) applies in respect of a person who was entitled to have his name entered in the Band List under paragraph 11(1)(c) immediately before the band assumed control of the Band List if that person does not subsequently cease to be entitled to have his name entered in the Band List.
[…]
[emphasis added]
[23] Sections 10(4) and (5) prevent First Nations from applying their membership rules retroactively for the purpose of denying individuals the right to membership when they are already on the membership list or are entitled to be on the membership list. In addition, section 10(10) requires that any additions or deletions to the membership list be in accordance with the First Nation’s membership rules that were approved by the community.
[24] Following the addition of section 10 to the Indian Act, Peters First Nation members and the Council began discussing taking control over their membership list. Following these discussions, Peters First Nation gave notice to the Minister that it was assuming control of its membership and adopted interim membership rules on June 25, 1987. On September 18, 1987, the Minister confirmed that Peters First Nation assumed control over its membership pursuant to section 10(7) of the Indian Act effective June 25, 1987. The Minister’s correspondence also noted that Peters First Nation’s membership rules could not deprive a person of membership if they had acquired that right before it assumed control over membership.
[25] Before Peters First Nation took control over its membership list, once a person gained or regained Indian status, Canada would automatically register them as a member of Peters First Nation, if Peters was the First Nation they were connected with.
[26] Peters First Nation adopted a final membership code entitled the “Peters Indian Band Membership Code” on March 9, 1990. For clarity, at the time the Membership Code came into force, Peters First Nation was referred to as the Peters Indian Band. There are no substantive differences between the interim membership rules and the final Membership Code. This Membership Code has not been amended and remains in effect today.
[27] Part III of the Membership Code prescribes the following membership criteria:
“1. Membership in the Peters Indian Band shall consist of the following persons
a) Everyone whose name appeared on the Band List on April 17, 1985;
b) Everyone who became entitled to have his or her name registered on the Peters Band List in accordance with Section 6 paragraph 2 of the Indian Act, as amended, by the date the Membership Code is adopted by the Band;
c) Everyone who became entitled to have his or her name registered on the Peters Indian Band List in accordance with Section 6 paragraph 1 (f) of the Indian Act, as emended (sic), by the date the Membership Code is adopted by the Band;
d) Everyone who is granted Band Membership Status pursuant to part IV and V of this Membership Code;
e) Everyone who is a natural child of a parent whose name is registered on the Band List.”
[28] Part IV of the Membership Code outlines the procedure to apply for membership. Sections 3 and 4 of Part IV require the Council to deal with all applications as expeditiously as possible, and, in any event, all applications must be decided within 30 days.
[29] Part V of the Membership Code outlines an appeal process following a decision to deny membership. An applicant who has been denied membership can appeal to the electors of Peters First Nation and the electors must make a decision within 60 days.
[30] Part VI of the Membership Code prescribes how membership status may be lost. The Council can challenge the membership status of a member pursuant to the terms of the Membership Code. If such a challenge is made, the member must be notified in writing, and the member can apply for a review of that challenge to the electors of Peters First Nation.
[31] In the early 1990s, Peters First Nation decided to stop accepting applications for membership from Bill C-31 applicants. As noted in a 1993 Council document on Bill C-31, the Council was aware such a policy was contrary to the Membership Code:
In June 1985, through Bill C-31, the amendment to the Indian Act resulted in certain individuals being eligible to regain their Indian status or to become first time registrants [...]
Presently there are at least 25 prospective individuals who have historical family affiliation with this band and are requesting membership and demanding the benefits of those enjoyed by current on-reserve members. These demands for membership and benefits are putting a strain on available resources. Presently the council in order to balance the current on-reserve land holding and the expectations of those wishing residence, have reluctantly adopted not to accept applications for membership contrary to the Band’s current Membership Code.
[emphasis added]
[32] Witnesses for Peters First Nation were uncertain or vague about whether this policy of not accepting applications from Bill C-31 applicants continues.
V. Circumstances of Each Complainant A. Gordon Lock, Deborah Senger and Harold Lock [33] Gordon, Deborah and Harold are siblings. Their mother was a member of Peters First Nation, as were both of their mother’s parents. Their mother lived on the Peters First Nation reserve all through her childhood.
[34] Their mother’s first marriage was to a non-Indian. There were three children from this marriage: Harold, Gordon and Linda Locke. Linda is the only sibling recognized by Peters First Nation as a member.
[35] Their mother’s second marriage was also to a non-Indian. There were three children from this marriage as well: Deborah, Donald Senger, and William Senger. None of the Sengers are recognized by Peters First Nation as members.
[36] As a result of their mother’s first marriage, she was enfranchised and lost her status and membership, as did her children. After Bill C-31, Gordon, Deborah and Harold received their Indian status, as did their mother.
[37] Growing up, Deborah, Gordon and Harold all testified that they spent their summers and special holidays on the Peters First Nation reserve. They would stay with their grandmother, visit their extended family and play with their cousins. They all spoke of the importance of their grandmother in their lives. She taught them basket weaving, tying nets, sewing, crocheting, digging roots and preparing salmon. She also told them stories and taught them life lessons, including respect for nature and the importance of saying a prayer before harvesting a tree. Gordon testified how he felt that his grandmother was one of the only people in his whole life who really accepted him.
[38] In their adult years, all three spent less time on Peters First Nation’s reserve, particularly after their grandmother passed away, and had few close relatives on reserve. They all discussed how, particularly in recent years, they visited less and were made to feel unwelcome. Deborah, Gordon and Harold also noted how the escalating disputes in the community made it difficult to be there, even if they were not physically prevented from entering the community.
(i) Gordon Lock
[39] Gordon was born in 1956. He is currently not employed due to illness but previously worked as an elder in correctional services where he provided counselling and taught traditional Indigenous cultural practices.
[40] Shortly after the adoption of Bill C-31 in April 1985, Gordon regained status. Although the date is not clear, I accept that Gordon gained Indian status prior to Peters First Nation taking control of its membership list in 1987.
[41] After Gordon’s status was reinstated, he assumed he was a member. He found out within a few years, however, that he had to apply separately for membership. In the late 1980s and early 1990s, he had several conversations and phone calls with various Chiefs and Councillors about how he wanted to gain membership. During these discussions, the Chief or Councillor told him he would not get membership and did not belong to the Band.
[42] Gordon’s latest inquiry about membership was in or about 2014 when he spoke with Councillor Victoria Peters over the phone. Councillor Victoria Peters told him that they were not taking membership applications, that he had never been on the membership list, and that his Bill C-31 status had no bearing on his eligibility for membership with Peters First Nation.
[43] Given his discussions with Chief and Council over the years, Gordon assumed his membership application would be unsuccessful. Therefore, Gordon has never submitted an application for membership with the Peters First Nation.
[44] However, despite being told not to apply, Gordon and his sister Deborah attempted to complete the formal application process in 2021. But the application form they were required to fill out proved too onerous for them to complete and required them to provide difficult to acquire documentation, such as death certificates for their long-deceased grandparents.
[45] Gordon, like his siblings, discussed the emotional hardship of being excluded from membership. He described feeling broken-hearted about his loss of connection with his home. He described how important membership to Peters First Nation is to his identity and his sense of belonging. The denial of membership has impaired him in a lot of ways. He explained that he longs for acceptance from his community. The lack of acceptance has prevented him from “going inside himself... to move beyond this grief, move beyond this loneliness, and move beyond this not fitting in.”
(ii) Deborah Senger [46] Deborah was born in 1964. Deborah is currently on disability due to progressive multiple sclerosis. She previously worked with Indigenous children with disabilities.
[47] Deborah, as well as her brother Harold, were on the Peters First Nation membership list maintained by Canada in 1987, at the time that Peters First Nation took control of its membership, having been added pursuant to section 11(2) of the Indian Act. The parties are unsure why Deborah and Harold’s brother, Gordon, was also not on this list.
[48] In November 1987, however, Chief Frank Peters sought to remove Deborah and Harold from the membership list. As set out in the letter he wrote to Indian Affairs at the time, the removal was requested because Deborah and Harold have parents who are members of other Bands or are children of white males.
[49] It seems that the Canadian government did not reply to the request. Nonetheless, Peters First Nation unilaterally removed Deborah and Harold from its membership list around this same time. Neither Deborah nor Harold was informed they were removed from the list at the time, and the removal procedure in the Membership Code was not followed.
[50] A few years later, in the late 1980s or early 1990s, Deborah contacted Chief Frank Peters to inquire about becoming a member. The Chief’s wife was with him at the time, and she told Deborah that Deborah would not get membership and told her “never come back here.”
[51] When Annette Peters was Chief, Deborah again contacted her to inquire about membership with the Band. Again, the Chief told her that she would not get membership. It is unclear in the evidence when this was exactly, but it was sometime in the 2000s.
[52] Given her discussions with Chief and Council over the years, Deborah assumed her membership application would be unsuccessful. Nonetheless, in 2021, both Deborah and Gordon began the process of formally applying for membership. But the application form they were required to fill out was too onerous. For example, Deborah testified that she was required to provide the death certificates of her grandparents, which were difficult to obtain. The application was eventually abandoned.
[53] As a result, Deborah has never submitted an application for membership with the Peters First Nation.
[54] Deborah described the impact that the loss and denial of membership had on her as follows:
I’m registered B-C31 which means I’m just an Indian, which means nothing. I feel like I don’t have a home or community… I’ve also worked with Aboriginal people and I tell them I’m Bill C-31 and they say you don’t have a home, and I said no… I don’t have a physical connection to the reserve and that has a huge effect on me… I feel like I’m less than.
(iii) Harold Lock [55] Harold was born in 1948. He is retired and previously worked as an industrial mechanic, millwright and in the skilled trades.
[56] Harold stayed very active in Peters First Nation well into his adult years. He was very close with one of his uncles and would help every year during the hay season and would pick berries. He also lived with Chief Frank Peters and his wife for a year and a half during his 20s.
[57] Harold, like Deborah, was on the Peters First Nation membership list maintained by INAC in 1987 when Peters First Nation took over control of membership. His name was also removed from the membership list in 1987 by Peters First Nation after Chief Frank Peters sent a letter to Indian Affairs asking that his name be removed because he was a child of a white male. He was not told his name had been removed and the process to remove a person’s membership, as set out in the Membership Code, was not followed.
[58] Like his brother Gordon, Harold assumed he was a member once his Indian status was reinstated. At one point, he received a fish net license that he understood was reserved for members. This strengthened his belief that he was a member. He only found out he was not on the membership list shortly before his complaint was filed with the Canadian Human Rights Commission (the “Commission”).
[59] Harold testified about how important being connected to the Band is to his identity and culture and how important it is to have a connection to the land. He testified that: “I always say the Fraser River runs through my veins and the mountains hug me and I have a wonderful spiritual connection to my grandmother, grandfather and uncles who suffered because of residential schools.” In regard to the personal impacts of having his membership removed, Harold testified that to have people tell him he is not a member hurts and is making him a liar. He talked about being motivated to help community members heal from the “residue” of the residential school system.
[60] Although he went frequently to Peters First Nation as a child, his visits became less frequent as he got older. He talked about how it became more uncomfortable to be on the reserve as he was made to feel unwelcome. He has not been back on the reserve for around six to seven years. The last time we went was for a funeral of a family member.
[61] Harold has never submitted an application for membership with the Peters First Nation.
B. Carol Raymond [62] Carol was born in 1943 and is now retired. Her parents were both Peters First Nation members and were on the Peters First Nation membership list. Carol’s father was born and raised on the Peters First Nation reserve. Her mother became a Band member when she married Carol’s father. Carol’s paternal grandmother and her paternal great-grandparents were also members.
[63] Carol and her four siblings were all members from birth.
[64] Carol testified that she grew up closely connected with Peters First Nation and that she would visit the reserve regularly as a child to see her grandmother. In her late twenties or so, Carol visited Chief Frank Peters, who was a family member. During this visit, the Chief’s wife told him that there was no place for her on Peters First Nation. She stopped going with any frequency after that.
[65] She testified that, in 1953, when her parents divorced, she was erroneously and temporarily enfranchised along with all her siblings. Later, in 1961, Carol married a non-Indian, so she again lost her Indian status as a result of that marriage.
[66] After Bill C-31 passed in 1985, Carol, along with a number of other former Peters First Nation members and their families, applied for Indian status. She was successful in having her Indian status reinstated, as was her mother.
[67] Carol’s mother was on the membership list when Canada transferred the list over to the Peters First Nation in 1987. Carol’s name, however, was not on the list.
[68] Carol has made four formal applications to Peters First Nation for membership:
A) The first application was sent on October 12, 2012, in which a group of over 60 people applied for membership (the “Collective Application”). The Council rejected this application, arguing that Peters First Nation does not accept omnibus applications. In the rejection letter, Peters First Nation also made it clear that Peters First Nation considered enfranchisement history as a criterion for membership.
B) For her second application, Carol applied as an individual on June 19, 2013. Along with the application form, she provided her birth certificate, an explanation of her family history, her status card, and the membership list from 1949 showing herself, her parents and her grandmother as Peters First Nation members. Carol was informed her application was rejected but was given no explanation for this rejection.
C) Carol made her third application on October 14, 2016. At that time, she also resent her 2013 application. It was hand delivered directly to the Chief. She was interviewed as a part of this application by Chief Norma Webb and Councillor Victoria Peters. Leanne Peters attended the interview as administrator of Peters First Nation. Carol remembers being asked a series of questions, including whether she had a criminal record and whether she wanted land. Around a year and a half later, on June 29, 2018, Carol received a rejection letter from Peters First Nation. The letter says that she was removed from the membership list in 1952 due to the divorce of her parents. It also said that she was ineligible for membership because 1) only children under 18 could apply for membership, and 2) in 1987, when Peters First Nation took control of its membership, neither of her parents were members. It should be noted that the evidence shows that her mother’s name was, in fact, on the membership list at the time that Peters First Nation took control of membership.
D) Carol made her fourth application on or about January 25, 2021. Peters First Nation informed her that it could not consider her application until a Federal Court of Appeal case was decided. Chief Webb testified that the same letter was sent out to a number of other applicants. The Federal Court of Appeal decision referred to in the letter was made on December 20, 2021. However, there has been no further response from Peters First Nation regarding her membership application.
[69] Chief Webb testified that Peters First Nation has yet to process Carol’s applications or any other outstanding applications because, at least in part, she disagrees with the Federal Court of Appeal decision. Councillor Victoria Peters noted that the Council would review the application, but it was unclear when that would be.
[70] Carol testified about how the denials of membership affected her. She described that, after having some hope every time she applies that she would be accepted, she gets angry, frustrated and emotional each time she gets denied. She described how the hurt is so much more because it came from family. She keeps applying, nonetheless, because she wants to keep fighting for who she is and does not want to give up on her identity because someone else decided that she does not belong. She described how important it is for her, an Indigenous person who lost that part of her identity due to the discriminatory enfranchisement provisions of the old Indian Act, to be accepted and part of her community. For over 50 years, she has not felt accepted by a lot of her Indigenous relatives because she was